COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE FOURTH. OF PUBLIC WRONGS. CHAPTER I. OF THE NATURE OF CRIMES AND THEIR PUNISHMENT. WE are now arrived at the fourth and last branch of these Commentaries, which treats of public wrongs, or crimes and misdemeanors. For we may remember that, in the beginning of the preceding book, (a) wrongs were divided into two species: the one private and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemeanors; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessories; *fourthly, the several species of crimes, [*2] with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and sixthly, the method of inflicting those punishments, which the law has annexed to each several crime and misdemeanor. First, as to the general nature of crimes and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown; so called, because the king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights, belonging to that community, and is therefore in all cases the proper prosecutor for every public offence. (b) The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law (c) has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices, and ungovernable passions of others, the instability (a) Book III, c. 1. (b) See book I, p. 268. (c) Sir Michael Foster, pref. to rep. of all human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will teach us (upon a moment's reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern. In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, *and [*3] universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these external boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as Lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence: from some, or from all, of these causes, it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations: the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own. (d) But even with us in England, where our crown law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our *trials in the face of the world; where torture is unknown, and [*4] every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike;-even here we shall occasionally find room to remark some particulars that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care and attention in framing and passing new ones. The enacting of penalties, to which a whole nation should be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. (e) And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps, even the lives of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fish pond, whereby any fish shall escape; or to cut down a cherry tree in an orchard. (f) Were even a committee appointed but once in a hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for (d) Baron Montesquieu, marcus Beccaria, &c. (e) See book II, p. 845. 4 one month in the company of persons who call themselves, or are called, Egyptians. (g) It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public; *but that rather aggravates [*5] the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles: and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy. (1) Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes. I. A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms; though in common usage, the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults and omissions of less consequence are comprised under the gentler name of "misdemeanors" only. (2) The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity. As, if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime: for here only the right of an individual is concerned, and it is immaterial to the public, which of us is in possession of the land; but treason, murder, and robbery are properly ranked among crimes; since, besides the injury done to individuals, they strike at the very being of society, which cannot possibly subsist where actions of this sort are suffered to escape with impunity. (3) In all cases the crime includes an injury; every public offense is also a private wrong, and somewhat more; it affects the individual, and it likewise (g) Stat. 5 Eliz. c. 20. (1) This nint has been taken, at last, and a thorough revision has been made of the criminal law of England, relieving it of its worst and most barbarous features. (2) Crimes are, in general, classified as felonies and misdemeanors. As to felony, as defined at the common law, see post, 94, note, where the enlarged American meaning is also explained. And see Carpenter v. Nixon, 5 Hill, 260. Offenses less than felonies are misdemeanors. (3) The distinction between public crimes and private wrongs is to be found in positive law. "Whenever, therefore, the public deems that an act of wrong to individuals is of a nature requiring the public protection to be cast over the individual with respect to it, then the public makes the act punishable at its own suit; or, in other words, it makes it a crime." Bish. Cr. L., 4th ed., § 533; see Ibid., 7th ed., vol. 1, § 32. The difference between crimes and civil injuries is not to be sought in a supposed difference between their tendencies, but in the difference between the modes in which they are respectively pursued, or wherein the sanction is applied in the two cases. An offense which is pursued at the discretion of the injured party, or his representative, is a civil injury. An offense which is pursued by the sovereign, or by the subordinate of the sovereign, is a crime. Austin, Jurisprudence, lecture xvii. The meaning of the phrase, "high crimes and misdemeanors," underwent much discus sion in the case of President Johnson, who was tried on articles of impeachment in 1868, but the result of the case was not such that any authoritative rule can be derived from it. See, upon the general subject, articles in the American Law Register, vol. vi (N. S.), pp. 257 and 641. Wrongs done to individuals for which they may have a remedy by private action, but which involve no offense against the state, are usually spoken of as torts. 279 VOL. II.-36 [*8] involves in it conspiracy against an individual, which is also a civil in affects the community. *Thus treason, in imagining the king's death, is jury; but, as this species of treason in its consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; but were that all, a civil satisfaction in damages might atone for it: the public mischief is the thing, for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong swallowed up in the public: we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great. And, indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong: which can only be had from the body or goods of the aggressor. (4) But there are crimes of an inferior nature, in which the public punishment is not so severe, but it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance: in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment; and the party beaten may also have his private remedy by action of trespass for the injury which he in particular sustains, and recover a civil satisfaction in damages. So, also, in case of a public nuisance, as digging a ditch across a highway, this is punishable by indictment, as a common offence to the whole kingdom and all his majesty's subjects; but if any individual sustains any special *damage thereby, as [*7] laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong. Upon the whole we may observe, that in taking cognizance of all wrongs, or unlawful acts, the law has a double view: viz., not only to redress the party injured, by either restoring to him his right, if possible; or by giving him an equivalent; the manner of doing which was the object of our inquiries in the preceding book of these Commentaries; but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has thought proper to establish for the government and tranquility of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book. II. The nature of crimes and misdemeanors in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments: which are evils or inconveniences, consequent upon crimes and misdemeanors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehavior in those, to regulate (4) One reason why a civil suit is not permitted until after the termination of a criminal prosecution is, that if the party injured were first to recover satisfaction in damages, he might not thereafter be disposed to pursue the criminal action. See Cox v. Paxton, 17 Ves., 329; Crosby v. Leng, 12 East, 409; White v. Spettigue, 13 M. & W., 603. In the United States, where the management and control of prosecutions for offenses against the state are confided to officers chosen or appointed for the purpose, the civil remedy is not thus postponed. Parties injured by a felony are not permitted to compound with the offender, and to receive a compensation for suppressing a prosecution, or concealing the evidence of the crime; but they may demand and recover compensation for the private injury the crime has inflicted upon them, without awaiting the result of such action as the public prosecutor may see fit to institute. See Plumer v. Smith, 5 N. H., 553; Boston, etc., R. R. Co. v. Dana, 1 Gray, 83, and cases cited. A whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure of human punishment. 1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanors. (h) It is clear, that the right of punishing crimes against the laws of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and if that power is vested in any one, it must also be vested in all mankind; *since all [*8] are by nature equal. Whereof the first murderer Cain was so sensible that we find him (i) expressing his apprehensions, that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state (though in fact, never exercised by any), of punishing not only their own subjects, but also foreign ambassadors, even with death itself; in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt. (k) As to offences merely against the laws of society, which are only mala prohibita, and not mala in se; the temporal magistrate is also empowered to inflict coercive penalties for such transgressions; and this by the consent of individuals; who, in forming societies, did either tacitly or expressly invest the sovereign power with the right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, severities adequate to the evil. The lawfulness, therefore, of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered, when first they engaged in society; it was calculated for, and has long contributed to their own security. This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others. Which has *occa[*9] sioned some to doubt how far a human legislature ought to inflict capital punishments for positive offences; offences against the municipal law only, and not against the law of nature: since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative, "whoso sheddeth man's blood, by man shall his blood be shed." (1) In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regulation of the Jewish republic: as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak; as these crimes are, none of them, offences against natural, but only against social rights; not even theft itself, unless it be accompanied with violence to one's house or person: all others being an in (h) See Grotius de j. b. & p. l. 2, c. 20. Puffendorf, L. of Nat. & N. 1. & c. 3. (1) Gen. ix, 6. (i) Gen. iv, 14. |